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[2002] ZASCA 13
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Mkangeli and Others v Joubert and Others (220/2001) [2002] ZASCA 13; [2002] 2 All SA 473 (A) ; 2002 (4) SA 36 (SCA) (25 March 2002)

IN THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
CASE
NO: 220/2001
In
the matter between:
KATAZILE MKANGELI AND 241 OTHERS
Appellants
and
JOSHUA
JOHANNES JOUBERT First Respondent
VILLAGE
FARM ADMINISTRATORS (PTY) LTD Second Respondent
JUKSKEI
CROCODILE CATCHMENT AREA FORUM Third Respondent
THE
DUTCH REFORMED CHURCH NOORDRAND Fourth Respondent
______________________________________________________________________________
CORAM:
SMALBERGER
ADP, HOWIE, OLIVIER, MPATI et BRAND JJA
­­­­­­­­­­­­­­­­­______________________________________________________________________________
Date
Heard:
21 February 2002
Delivered:
25
March 2002
Extension
of Security of Tenure Act 62 of 1997
- also applies where eviction of
"occupier" sought by someone other than owner of the land.
____________________________________________________________________________
J
U D G M E N T
______________________________________________________________________________
BRAND JA
BRAND JA
[1]
In
the semi-rural area northwest of Johannesburg lies a property, some
23 hectares in extent, which became known in this matter as
'Itsoseng'. It is registered in the names of 'The trustees for the
time being of the Itsoseng Community Development Trust' ('the
trust'). The 242 appellants are nominated in the trust deed as
beneficiaries of the trust.
[2]
Until
6 June 2000 the appellants were informal settlers on another property
in the vicinity of Itsoseng which belonged to Fedsure
Life Assurance
Limited ('the Fedsure property'). On 6 June 2000 the appellants
relocated en masse to Itsoseng where they erected
their informal
dwellings of iron and wood with the express consent of the trustees
of the trust ('the trustees') as registered owners
of the property.
It emerges form the papers that the relocation was brought about by
an unknown benefactor who donated a substantial
amount of money to
the informal settlers, subject to the condition that they evacuate
the Fedsure property and settle elsewhere.
The donation was
utilised to purchase Itsoseng. The trust was formed for the
specific purpose of becoming the registered owner
of this property
on behalf of the erstwhile occupants of the Fedsure property, while
the latter were nominated as beneficiaries
of the trust.
[3]
The
respondents are either property owners or representatives of property
owners in the immediate area of Itsoseng. Shortly after
6 June 2000
they brought an urgent application in the Witwatersrand Local
Division, essentially for an order compelling the removal
of the
appellants and their informal dwellings from Itsoseng. Originally the
appellants were not joined as parties to the application.
Various
other parties were cited as respondents. Amongst these were the
trustees in their capacities as owners of Itsoseng as
well as their
former attorney, Mr NLJ van Rensburg, who was responsible for
establishing the trust as the original donor. He was
cited as the
first respondent. Subsequently the appellants were joined as the
14
th
to the 255
th
respondents in the
application at the direction of the Court
a quo
. In a
judgment that has since been reported
sub nom
Joubert and
Others v Van Rensburg and Others
2001 (1) SA 753
(W), the Court
a
quo
(Flemming DJP) held against the trustees and the present
appellants. In essence the Court's order enjoined the trustees to
break
down all structures erected on Itsoseng after 9 June 2000
within a period of one month from the date of the order while
appellants
were ordered to vacate Itsoseng during the same period.
Only appellants sought and obtained leave from this Court to appeal
against
the order of the Court
a quo
.
[4]
As
the basis for their application, the respondents relied on two causes
of action. The first was that the appellants occupied
and used the
land comprised by Itsoseng contrary to the provisions of the
applicable town-planning scheme. The second was that
the appellants
caused unlawful nuisance to the respondents which was of such a
nature that it could only be abated by their removal
from Itsoseng.
In support of their first cause of action respondents relied mainly
on the provision in the applicable town-planning
scheme that no more
than one dwelling house could be erected on the property, except with
the written consent of the local authority.
The nuisance relied
upon by the respondents fell into two categories. The first
category included the predictable problems occasioned
by the
settlement of 242 households - comprising approximately 1500 people -
without any provision for sanitation, running water,
electricity or
refuse removal. These problems include pollution of the underground
water and the run-off streams in the vicinity,
pollution of the
atmosphere by smoke, solid waste pollution and littering. The
second type of nuisance complained of consisted
mainly of criminal
activities ranging from trespassing to break-ins and robberies on the
neighbouring properties.
[5]
The
appellants admitted that they used the land comprising Itsoseng
contrary to the applicable town-planning scheme. They also
conceded
that their occupation of the land in itself brought about the
nuisance that fell into the first category of the respondents'
complaints. With reference to the alleged nuisance of the second
kind the appellants denied that they were responsible for these
criminal activities.
Consequently, the respondents could not
rely on these disputed allegations as part of their case.
[6]
The appellants' main answer to the application - in the Court
a
quo
as well as in this Court - was, however, that they were
protected against eviction from Itsoseng by the provisions of the
Extension
of Security of Tenure Act 62 of 1997 ('Esta'). Moreover,
they contended, since the matter was governed by the provisions of
Esta,
the High Court had no power to order their eviction from the
property. Although the constitutionality of Esta was not raised by
any of the parties in the Court
a quo
, the learned Judge
devoted a substantial part of his judgment to a determination of this
non-existent dispute (para 29 - 43 at 787F
- 798E) which eventually
led him to the conclusion that Esta as a whole is unconstitutional
(see para 44.1 at 798F). In this Court
the respondents disavowed
any reliance on this finding in their favour by the Court
a quo
.
In the circumstances I will refrain from embarking on the
evaluation of a contention which was never raised.
[7]
What
the respondents did rely on as the basis for their argument in this
Court was the further finding by the Court
a quo,
that Esta is
in any event not applicable on the facts of this case in that Esta
only applies where the application for eviction
of occupants is
brought by the owner of the land concerned and not where the eviction
of occupants is sought by non-owners such as
the present respondents
(see para 28.2.8. at 787 E).
[8]
The
issue between the parties therefore turns on the applicability of the
provisions of Esta. Turning to a consideration of these
provisions,
it must be borne in mind that Esta is the Legislature's response to
the constitutional imperative in ss 25(6) and (9)
of the
Constitution. These subsections provide:
'(6) A person or community whose tenure of land is
legally insecure as a result of past racially discriminatory laws or
practices
is entitled, to the extent provided for by an Act of
Parliament, either to tenure which is legally secure or to comparable
redress.'
and
'(9) Parliament must enact the legislation referred to
in subsection (6).'
[9]
Generally speaking Esta protects a particular class of
impecunious tenant on rural and semi-rural land against eviction from
that
land. The underlying basis for their protection is that they
acquired their tenancy with the consent of the owner. The term used
by Esta to describe the class of tenants protected by it, is
'occupiers'.
[10]
In this Court it was conceded by the
respondents that the appellants were 'occupiers' of Itsoseng as
defined in s 1(1) of Esta.
In the Court
a quo
they took up
the contrary position that the appellants were not 'occupiers'
because the trustees, who consented to the appellants'
occupation,
did not qualify as 'owners' of Itsoseng. This contention by the
appellants led the Court
a quo
(paras 8 - 9 at 767 - 772 )
into an investigation of the legal validity of a longstanding
practice in the Deeds Office, which was
followed in this case, that
allows for the registration of trust property in the name of 'the
trustees for the time being' of the
particular trust. As a result
of this investigation the learned Judge came to the conclusion, which
he himself described as '
likely to rock the boat' (see para 10.8 at
772 A), that the longstanding practice referred to has no legal
validity. The investigation
was in my view unnecessary, the
conclusion clearly
obiter
and
prima facie
wrong.
Ownership of trust property depends on the terms of the trust
instrument. (See e g
Honoré's South African Law of
Trusts
, 4th ed by Honoré and Cameron, 222-3.) According
to the trust deed of the Itsoseng trust, Itsoseng vests in the
trustees.
In any event, even if the trustees were technically not
the owners of Itsoseng they clearly were the persons 'in charge of
the
land' as envisaged by Esta. Their consent was therefore
sufficient to qualify the appellants as 'occupiers'. (See the
definitions
of 'consent', 'occupier' and 'person in charge' in s
1(1).) In the circumstances the correctness of the findings by the
Court
a quo
regarding the validity of the deeds office
practice in question, does not require the consideration of this
Court.
[11]
Since
the appellants are occupiers of Itsoseng, s 6(1) of Esta confers the
right upon them to reside and use the property while ss
6(2) and 7
protect them against certain forms of interference with their rights
of residence and use. Because these rights are founded
on the
consent of the owner, Esta recognises that they may be terminated by
the owner's withdrawal of that consent. (See the definition
of
'terminate' in s 1(1).) The owner's freedom to do so is however
limited by the provisions of s 8. The general rule under s
8(1) is
that an occupier's right of residence may only be terminated on
lawful grounds and - in addition - only if it is just and
equitable
to do so. When the court determines what is just and equitable, it
has to take account of the factors enumerated in s
8(1), together
with all other relevant factors. Section 8(4) deals with occupiers
who are particularly vulnerable. Included amongst
them are
occupiers who have reached the age of 60 and those who have resided
on the land in question, or any other land of the owner,
for more
than 10 years. Their right of residence may only be terminated if
they are guilty of a material breach of the rules that
govern their
relationship with the owner.
[12]
Once
an occupier's right to reside has been duly terminated, his refusal
to vacate the property is unlawful. Nevertheless, it does
not mean
that the remedy of eviction will necessarily be available. This
remedy is limited by those provisions of Esta to which
I will
presently return. On the other hand, Esta places no limitation on
the other remedies attracted by unlawful occupation.
It must
therefore be accepted, I think, that the other remedies such as the
owner's delictual claim for his patrimonial loss caused
by the
unlawful occupation of his land (see eg
Hefer v Van Greuning
1979 (4) SA 952
(A) ) are still available to him.
[13]
As
to the remedy of eviction s 9(2) provides that a court may only issue
an eviction order if certain conditions are met. The first
such
condition is that the occupier's right to residence must have been
properly terminated under s 8. Other conditions prescribed
by s
9(2) include the giving of two months notice of the intended eviction
application after the right to reside has been terminated
under s 8
(s 9 (2)(d)). In a case such as the present, where the appellants
took occupation of Itsoseng after 4 February 1997,
s 11 also finds
application. This section provides that a court may only grant an
eviction order if it is of the opinion that it
is just and equitable
to do so. In deciding whether it is just and equitable to grant an
eviction order the court must have regard
to the considerations
listed in s 11(3), but it is not limited to them. Included amongst
these is the consideration 'whether suitable
alternative
accommodation is available to the occupier' (s 11(3)(c) ) and 'the
balance of the interests of the owner, ... the occupier
and the
remaining occupiers on the land' (s 11(3)(e) ).
[14]
When
the court has granted an eviction order, the consequences of the
order are determined by ss 12 and 13.
Inter alia,
the court
must decide on a just and equitable date on which the occupier shall
vacate the land (s 12(a) ) and the court must order
the owner to pay
compensation for structures erected and improvements made by the
occupier as well as standing crops planted by the
occupier, to the
extent that it is just and equitable to do so (s 13(a) ).
[15]
In
terms of ss 17, 19 and 20 of Esta the application of its provisions
at first instance are entrusted to the exclusive jurisdiction
of the
magistrate's court and the Land Claims Court, with the limited
exception that the High Court may exercise jurisdiction with
the
consent of all the parties to the proceedings (s17(2) ). Save for
the exception, the jurisdiction of the High Court to apply
the terms
of the Act is expressly excluded by s 20(2).
[16]
There
is no suggestion that any of the parties to the present matter
consented to the jurisdiction of the High Court. It follows
that if
the appellants are correct in their contention that the matter is
governed by the provisions of Esta, it must be accepted
that the
Court
a quo
had no jurisdiction to grant an order for the
eviction of the appellants and that for that reason alone the appeal
must succeed.
[17]
From
the synopsis of the provisions of Esta it is apparent that the
Legislature, in an obvious endeavour to comply with the directives
of
ss 25(6) and 9 of the Constitution, intended to ensure security of
tenure for occupiers by affording them comprehensive protection
against eviction from the land upon which they reside. It seems to
follow that as a corollary to this comprehensive protection
of
occupiers, the Legislature intended to impose extensive limitations
on any right to seek the occupiers' eviction from that land.
This
intention appears to be emphasised by the plain wording of ss 9(1)
and 23(1) of Esta. These sections provide:
'9(1) Notwithstanding
the provisions of any other law, an occupier may be evicted only in
terms of an order of court issued under
this Act'
and
'23(1) No person shall evict an occupier except on the
authority of an order of a competent court'
[18]
A
literal interpretation of these provisions appears to indicate an
intention on the part of the Legislature that any right to have
an
occupier evicted, regardless of who may be the holder of such right
and whatever the source of such right may be, should be subject
to
and limited by the provisions of Esta. Respondents conceded that
the provisions of ss 9(1) and 23(1) are of wide import. Their
contention was, however, that these provisions are to be understood
in the context of Esta as a whole and that, so understood, it
becomes
apparent that Esta does not apply where the eviction of an occupier
is sought by someone other than the owner of the land.
Their
argument in support of this contention was essentially twofold.
First that, since all the provisions of Esta relate exclusively
to
the relationship between owner and occupier, the inference is
justified that the purpose of Esta as a whole is to govern this
relationship and that it is not concerned with the relationship
between occupiers and outside parties. Secondly that, since an
occupier can only be evicted under Esta with the co-operation of the
owner, the owner can frustrate a non-owner's common law or statutory
right to have an occupier evicted if the owner sides with the
occupier, as has happened in this case. The application of Esta to
non-owners, so the argument went, will therefore deprive non-owners
of their common law and statutory rights to have an occupier
evicted.
That, so the argument concluded, could not have been the intention
of the legislature.
[19]
The
respondents are correct in their argument that the express provisions
of Esta are exclusively aimed at the relationship between
owners and
occupiers and that there is no specific reference to third parties.
However, this in itself does not justify the inference
that ss 9(1)
and 23(1) should be restrictively construed. On the contrary, the
context of Esta as a whole appears to support a
literal
interpretation of these sections. According to the provisions of Esta
as a whole, the justification for affording occupiers
security of
tenure is that they occupy the land with the owners consent. As
long as the owner has not withdrawn his consent, the
occupier may
stay. The notion that the occupiers' right to reside can be
terminated without the withdrawal of the owner's consent
therefore
appears to be in conflict with the scheme of Esta as a whole.
[20]
Moreover,
having regard to the provisions of Esta as a whole, there appears to
be no reason why the Legislature would not expressly
have excluded
evictions of occupiers at the behest of non-owners from the ambit of
the Act, if it intended to do so. It did so,
for instance, in the
Prevention of Illegal Eviction from and Unlawful Occupation of Land
Act 19 of 1998 ('Pie') which was enacted
within months after the
enactment of Esta. Pie also imposes restrictions on the eviction of
persons who are in unlawful occupation
of the land of another. But
it expressly provides in s 4(1) that those restrictions apply only
'to proceedings by an owner or person
in charge of land for the
eviction of an unlawful occupier'.
[21]
This
bring me to the respondents' second argument, that an interpretation
of Esta which confines a non-owner's right to have an occupier
evicted to an application under this Act will result in the non-owner
being deprived of his rights if the owner refuses to co-operate.

For the reasons I have stated, I believe that respondents are correct
in their argument that an eviction under Esta requires the
co-operation of the owner. Until the occupier's right to reside has
been terminated through the withdrawal of the owner's consent,
the
occupier cannot be evicted. The question arises, however, whether
it follows from this that a non-owner can never succeed in
causing
the occupier's eviction under Esta if the owner refuses to
co-operate. I think not. On the assumption that the
non-owner/applicant
has the right to seek the eviction of an
occupier, but that he can only do so with the co-operation of the
owner, I can see no reason
why he cannot join the owner in an
eviction application under Esta. His relief sought against the
owner will effectively be for
an order compelling him to withdraw his
consent - in accordance with the provisions of Esta -and to take such
steps as he can under
Esta to cause the eviction of the occupiers
from his land. Thus understood, the application of Esta to
evictions of occupiers at
the behest of non-owners will not deprive
the latter of rights that they may otherwise have had.
[22]
We
know that in this matter the appellants were not even joined in the
original application for their eviction. That only came later.
The
original order sought by the respondents was to compel the trustees
as owners of Itsoseng to have the appellants removed from
their land
It was also conceded by counsel for the respondents in this Court
that, apart from the provisions of Esta, an application
for the
eviction of the appellants could not have been brought without
joining the owners of the property as parties thereto. In
my view,
this concession was rightly made. As indicated, the two causes of
action relied upon by the respondents were nuisance
and
non-compliance with the applicable town-planning scheme. I know of
no authority that would entitle a non-owner, relying on
either of
these two causes of action, to seek the eviction of occupiers from
his neighbour's land without joining his neighbour in
the
proceedings. Even on the facts of this matter it is therefore
apparent that the provisions of Esta would not deprive the
respondents
of rights that they previously might have had.
[23]
The
fact that the provisions of Esta would
limit
the rights to
seek an occupier's eviction that third parties might previously have
had, would not justify an inference that the Act
was not intended to
apply to them. On the contrary, such limitation would be entirely
consistent with the legislative intent that
appears from the
background, the scheme and the wording of Esta. The interpretation
of Esta contended for by the respondents would
mean that the rights
of an owner to evict occupiers are severely limited while those of
non-owners are not. Such result would,
in my view, be anomalous.
Our common law affords the strongest protection against unlawful
occupation to the owner of the land.
It is therefore difficult to
imagine why the Legislature would so severely curtail the rights of
owners of land, but refrain from
imposing any restrictions on the
rights of third parties to seek the eviction of an unlawful occupier
from land that does not belong
to them. It would conversely be
anomalous for the Legislature to protect occupiers against eviction
at the behest of owners but
to leave them exposed to eviction at the
behest of third parties. The fact that in the case of owners prior
consent to occupation
has been given does not detract from this
anomaly.
[24]
A
further anomaly that will result from the interpretation of Esta
contended for by the respondents is clearly illustrated by the
order
granted by the Court
a quo
. The trustees, as owners, were
directed to summarily evict the appellants from their land. Esta,
on the other hand forbids them
to do so. In my view it goes without
saying that a Court cannot order someone to act in direct
contravention of a statutory provision.
[25]
In
all the circumstances I am therefore of the view that there is every
reason to accept that the wide wording of ss 9(1) and 23(1)
was
literally meant and that all applications for eviction of occupiers,
whoever the applicant may be, must be brought under and
in accordance
with the provisions of Esta. It follows that the Court
a quo
had no jurisdiction to grant an order for the eviction of the
appellants from Itsoseng and that the appeal must therefore succeed
with costs. Although the trustees did not appeal against the order
of the Court
a quo
it is apparent from the foregoing that in
as much as they were compelled by the order to cause the eviction of
the appellants, the
order cannot stand.
[26]
Finally,
there are certain comments by the Court
a quo
that I
unfortunately need to refer to lest it be thought to be condoned by
this Court. After the learned Judge came to the conclusion
'on
where the law leads' (par 3.4 at 764), i e that Esta does not find
any application on the facts of this case, he proceeded to
express
his disapproval of the provisions of Esta and its whole underlying
philosophy. It is sufficient to give the following three
examples,
although there are more:
'Some interventions and discriminations of the Tenure
Act [i e Esta] are packaged as if they are protective of that which
in fact
required no additional statute. Section 5 commences by
stating rights which would have existed in any event. Section 5
adds nothing
to the Constitution. It subtracts. The
constitutional right to privacy must now tolerate hordes of
"unlawful" occupiers
who are protected by the Tenure Act.'
(paras 36.1 and 36.2 at 792G)
and
'Then
comes the Tenure Act to protect occupation which is unlawfully and
arbitrarily taken and held to the same extent as occupation
about
which the occupier has some moral high ground. Thus it is a law
which permits arbitrary depriving of property'. (para 39.3.4.at
795
G)
and
'An
overseas property investor cannot see possible justness in protecting
'I want what you have' and the person who has been ejected
thrice
because of inability to pay rental has no conception of the effort
involved in trying to save and to build up something for
the future;
to own property only proves to him that some delict was committed
somewhere in history'. (para 41.1.3 at 796 D)
[27]
I do not
suggest that judges are precluded from expressing any view on the
inequity and unfairness of statutory provisions, which
they are, by
their oath of office, bound to apply. This has been done many times
by South African judges in the past. However,
judges must avoid
creating the impression, particularly in dealing with a statute of a
socially contentious nature, that they are
using their judgments as
an opportunity to give vent to their own dissatisfaction with a
political decision or that they are insensitive
to the existence of
conflicting views or interests in the community that they serves.
Nor must judges create the impression, either
through the content or
the tone of their expressions, that they have so aligned themselves
with a particular political point of view
that they are not prepared
to approach the interpretation of the statute dispassionately and
with an open mind. Statements by the
learned Judge in the Court
a
quo
such as those that I have referred to may give the impression
that he failed to approach the question regarding the applicability
of Esta in an intellectually disciplined way and with an open mind.
These statements should therefore have been avoided.
[28]
For these
reasons:
(a) The appeal is allowed, with costs against the respondents jointly
and severally.
(b) Paragraphs 2 to 6 of the order of the Court
a quo
are set
aside and substituted with the following:
'The application against the 14
th
to the 255
th
respondents is dismissed.'
(c) Paragraph 8 of the order of the Court
a quo
is set aside
and for it is substituted the following:
'(i) The third to ninth respondents, are ordered jointly and
severally to pay the applicants' costs, including the costs of
proceedings
prior to 1 August 2000.
(ii) The applicants are ordered jointly and severally to pay the
costs of 14th to 255th respondents.'
____________________
FDJ BRAND
JUDGE OF
APPEAL
CONCURRED
SMALBERGER ADP
HOWIE JA
OLIVIER JA
MPATI JA